SECOND AMENDMENT TO
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
This SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
(this "Second Amendment") is executed and effective (subject to the condition
set forth in Section 7.6 below) on October 21, 1997, by and among (a) FINE HOST
CORPORATION, a Delaware corporation, for itself and as agent for all of the
Borrowers (as defined below)(hereinafter referred to as "Fine Host" when acting
for itself and as the "Borrower Agent" when acting as agent for all of the
Borrowers (including Fine Host)), (b) all of the Subsidiaries of Fine Host
(other than the New Subsidiaries (as defined below))(said Subsidiaries, together
with Fine Host and any and all other Subsidiaries which may hereafter become
parties to the Loan Agreement (as defined below) are hereinafter sometimes
referred to collectively as the "Borrowers" and each singly as a "Borrower"),
(c) VARIOUS BANKS AND OTHER FINANCIAL INSTITUTIONS which are parties to the Loan
Agreement (hereinafter referred to collectively as the "Banks" and each singly
as a "Bank"), (d) BANKBOSTON, N.A., a national banking association
("BankBoston"), as administrative agent for the Banks (in such capacity, the
"Administrative Agent"), and (e) USTRUST, a Massachusetts trust company
("USTrust"), as documentation agent for the Banks (in such capacity, the
"Documentation Agent")(the Administrative Agent and the Documentation Agent are
hereinafter sometimes referred to collectively as the "Agents").
All capitalized terms not defined herein but defined in that certain
Fourth Amended and Restated Loan Agreement, dated as of July 30, 1997, by and
among Fine Host, all of the Subsidiaries, the Banks, and the Agents, as amended
by a certain First Amendment to Loan Agreement, dated as of August 14, 1997, by
and among Fine Host, all of the Subsidiaries, the Banks, and the Agents (said
Fourth Amended and Restated Loan Agreement, as so amended, is hereinafter
referred to as the "Loan Agreement") shall have the meanings given to such terms
in the Loan Agreement.
PRELIMINARY STATEMENTS
WHEREAS, Fine Host intends to offer and sell certain Subordinated
Convertible Notes due 2004, in the aggregate principal amount of up to Two
Hundred Million and 00/100 Dollars ($200,000,000.00)(the "Subordinated
Convertible Notes"), and to use a portion of the Net Proceeds therefrom to pay,
on the Offering Completion Date, all of the outstanding Liabilities, all as more
particularly described below; and
WHEREAS, the Borrowers request that the Banks and the Agents amend the
Loan Agreement to permit Fine Host to issue the Subordinated Convertible Notes;
and
WHEREAS, subject to the terms and conditions contained herein, the
Banks and the Agents are willing to so amend the Loan Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficient of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments To Loan Agreement.
1.1 Amendment to Subsection 1.1. The following definitions are
inserted in subsection 1.1 of the Loan Agreement in the
appropriate alphabetical order:
"'Consolidated Senior Debt' means at any date of
determination, the sum of all of the outstanding Liabilities
plus any other outstanding Indebtedness that is Senior
Indebtedness (as such term is defined in the Indenture), all
as determined as of such date on a consolidated basis in
accordance with GAAP.
'Subordinated Convertible Notes' means certain
Subordinated Convertible Notes due 2004, of Fine Host, in the
aggregate principal amount of not more than Two Hundred
Million and 00/100 Dollars ($200,000,000.00)."
'Indenture' means that certain Indenture to be
entered into between Fine Host and The Bank of New York as
trustee, providing for the issuance of the Subordinated
Convertible Notes on substantially the terms set forth under
the caption "Description of Notes" contained in the
Preliminary Offering Memorandum, dated October 10, 1997 of
Fine Host relating thereto, a copy of which Preliminary
Offering Memorandum (the 'Offering Memorandum') has been
delivered to each of the Banks and the Administrative Agent,
as such Indenture may be amended, modified, supplemented,
extended or restated, from time to time, in accordance with
the provisions of subsection 7.14."
1.2 Amendment to Subsection 4.3(b). The following sentence is
inserted at the end of clause (b) of subsection 4.3 of the
Loan Agreement:
"As used herein, the term "combined companies" means (i) all
of the Borrowers (including without limitation, any Subsidiary
which pursuant to the provisions of Subsection 6.12(b) below,
is required to become a Subsidiary Borrower) and (ii) the
acquired business or target company, whichever is applicable."
1.3 Amendment to Subsection 7.1. Subsection 7.1 of the Loan
Agreement is hereby amended as follows:
(a) Subsection 7.1(a) of the Loan Agreement is hereby amended
and restated as follows:
"(a) Ratio of Consolidated Debt to Adjusted
Consolidated EBITDA. Permit for any period of four
consecutive fiscal quarters (to be tested as of the
last day of each fiscal quarter, commencing with the
fiscal quarter ending December 31, 1997) the ratio of
their Consolidated Debt for such period to their
Adjusted Consolidated EBITDA for such period to be
more than:
(i) 5.0 to 1.00 as of the last day
of the fiscal quarters ending December 31,
1997 and April 1, 1998 (provided, however,
that the failure of the Borrowers to comply
with such ratio during such period shall not
constitute an Event of Default hereunder so
long as during each such period, (x) there
are no Guidance Loans outstanding, and (y)
such ratio is not more than 5.4 to 1.00);
(ii) 4.5 to 1.00 as of the last day
of each of the fiscal quarters ending July
1, 1998 and September 30, 1998; and
(iii) 4.0 to 1.00 as of the last day
of the fiscal quarter ending December 30,
1998 and at the end of each fiscal quarter
thereafter."
(b) The following new Subsection 7.1(e) and the following new
paragraph are inserted at the end of subsection 7.1 of the
Loan Agreement:
"(e) Ratio of Consolidated Senior Debt to
Adjusted Consolidated EBITDA. Permit for any period
of four consecutive fiscal quarters (to be tested as
of the last day of each fiscal quarter, commencing
with the fiscal quarter ending December 31, 1997) the
ratio of their Consolidated Senior Debt for such
period to their Adjusted Consolidated EBITDA for such
period to be more than:
(i) 2.75 to 1.00 as of the last day
of each of the fiscal quarters ending
December 31, 1997 and April 1, 1998;
(ii) 2.50 to 1.00 as of the last day
of each of the fiscal quarters ending July
1, 1998 and September 30, 1998; and
(iii) 2.25 to 1.00 as of the last
day of the fiscal quarter ending December
30, 1998 and at the end of each fiscal
quarter thereafter.
All financial ratios and covenants in this subsection
7.1 which are tested as of the last day or at the end of any
fiscal quarter shall be applicable at all times during the
relevant period."
1.4 Amendment to Subsection 7.3. Subsection 7.3 of the Loan
Agreement is hereby amended as follows:
(a) The word "and" at the end of clause (h) of
subsection 7.3 of the Loan Agreement is deleted.
(b) The period at the end of clause (i) of subsection
7.3 of the Loan Agreement is deleted, and replaced with the
following:
"; and (j) the Indebtedness of Fine Host under the
Subordinated Convertible Notes."
1.5 Amendment to Subsection 7.14. Subsection 7.14 of
the Loan Agreement is hereby amended as follows:
(a) The words "(including but not limited to
Subordinated Debt)" contained in subsection 7.14 of the Loan
Agreement are replaced with the following words:
"(including without limitation, (a) any of the
Indebtedness evidenced by the Subordinated
Convertible Notes, and (b) all of the Subordinated
Debt)".
(b) The following sentences are inserted at the end
of subsection 7.14 of the Loan Agreement:
"The foregoing provisions shall not apply to the
conversion of Subordinated Convertible Notes, in
accordance with their terms. Fine Host shall not
amend, modify or change, or consent or agree to any
amendment, modification or change to, any of the
terms of the Subordinated Convertible Notes or the
Indenture (other than any such amendment,
modification, change, consent or agreement which (i)
would extend the maturity or reduce the amount of any
payment of principal thereof or would reduce the rate
or extend the date for payment of interest thereon or
(ii) does not adversely affect the interests of the
Agents or the Banks hereunder or under the other Loan
Documents)."
1.6 New Subsection 7.14A. The following new
subsection 7.14A is hereby inserted between subsections 7.14
and 7.15 of the Loan Agreement:
"7.14A. No Violation of Subordination Provisions by
Subsidiary Borrowers. No Subsidiary Borrower will directly or
indirectly make any payment, or do any act with respect to any
of the Subordinated Convertible Notes or the Subordinated
Debt, which payment or act if made or done by Fine Host would
violate or conflict with any of the subordination provisions
contained in any of the agreements, notes, indentures
(including the Indenture), documents, instruments and other
writings that evidence or otherwise relate to the Subordinated
Convertible Notes or the Subordinated Debt."
1.7 Amendment to Subsection 8.1. Subsection 8.1 of
the Loan Agreement is hereby amended as follows:
(a) The word "or" at the end of clause (o) of
subsection 8.1 of the Loan Agreement is hereby deleted.
(b) The period at the end of clause (p) of subsection
8.1 of the Loan Agreement is replaced with a semicolon, and
the following new clauses are inserted immediately thereafter:
"(q) Any default shall exist and remains
unwaived or uncured with respect to any of the
Subordinated Convertible Notes if, as a result of
such default, any holder of such a Subordinated
Convertible Note, or the trustee under the Indenture,
is entitled to cause any such Subordinated
Convertible Note to become due prior to its stated
date of maturity, or any of the Subordinated
Convertible Notes shall not have been paid when due,
whether by acceleration or otherwise, or shall have
been declared to be due and payable prior to their
stated maturity; or
(r) The subordination provisions contained
in the Indenture cease to be enforceable in
accordance with their terms."
2. Use of Proceeds. The Net Proceeds from the Subordinated Convertible
Notes shall be used by Fine Host as follows: (a) first, to prepay in full, on
the Offering Completion Date, the entire outstanding balances of all of the
Loans, all in accordance with the provisions of subsection 3.1 of the Loan
Agreement, (b) second, to pay in full, on the Offering Completion Date, any and
all other outstanding Liabilities (other than Liabilities in respect of
outstanding Letters of Credit that have not been drawn), and (c) thereafter, for
working capital, acquisitions and general corporate purposes of Fine Host.
3. New Acquisitions. The Borrowers represent and warrant that, since
the Closing Date, Fine Host has acquired all of the issued and outstanding
shares of capital stock of the following corporations (collectively, "New
Subsidiaries"): (a) Statewide Industrial Catering, Inc., a New York corporation,
(b) Best, Inc., a Minnesota corporation, (c) Total Food Service Direction, Inc.,
a Florida corporation, and (d) Global Food Services, Inc., a Florida
corporation. The Borrowers will cause each of the New Subsidiaries to comply
timely and fully with the requirements of subsection 6.12(b) of the Loan
Agreement. The Borrowers hereby further represent and warrant that if, effective
as of the date hereof, each of the New Subsidiaries were to become a party to
the Loan Agreement and all of the other Loan Documents to which the Borrowers
are parties, there would be no breach by any of the New Subsidiaries of any of
its representations and warranties contained therein which would have a Material
Adverse Effect, and there would be no events, circumstances or conditions
(financial or otherwise) relating to any of the New Subsidiaries which would
materially and adversely impair the ability of each of the New Subsidiaries to
perform or observe all of its obligations thereunder in accordance with the
terms thereof.
4. Compliance with Subsection 4.2. Each of the Borrowers represents and
warrants that, except as otherwise described in Section 3 above, all of the
conditions contained in subsection 4.2 of the Loan Agreement would be satisfied
as of the date hereof, if an Extension of Credit were being made on the date
hereof.
5. Ratification of Loan Documents. Subject to the amendments expressly
set forth in this Second Amendment, each of the Borrowers hereby ratifies and
reaffirms all of the terms and provisions of the Loan Documents to which it is a
party or by which it or its property is bound, and hereby expressly acknowledges
and confirms that the terms and provisions of each thereof, as amended hereby,
shall and do remain in full force and effect. Without limiting the generality of
the foregoing, each of the Borrowers hereby acknowledges and agrees that each of
the Notes has, at all times, been and continues to remain in full force and
effect, notwithstanding that a portion of the Net Proceeds from the Subordinated
Convertible Notes will be used by Fine Host to pay the outstanding Liabilities,
as provided herein.
6. Conditions Precedent. The effectiveness of this Second Amendment is
subject to the satisfaction on the date hereof of each of the following
conditions precedent, all of which shall be in form, scope and substance
satisfactory to the Administrative Agent and its counsel:
(a) Second Amendment. The Administrative Agent shall have
received this Second Amendment, as executed by a duly authorized
officer or agent of each Borrower and the Required Banks;
(b) Authorization. All corporate or other action necessary for
the valid execution, delivery and performance by the Borrowers of this
Second Amendment shall have been duly and effectively taken, and
evidence thereof satisfactory to the Administrative Agent shall have
been provided to the Administrative Agent;
(c) Offering Memorandum. The Administrative Agent shall have
received a true, correct and complete copy of the Offering Memorandum
of Fine Host for the issuance of the Subordinated Convertible Notes;
and
(d) Opinion Letters. The Administrative Agent shall have
received opinion letters from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special counsel
for the Borrowers, and ▇▇▇▇▇ ▇▇▇▇▇, General Counsel for the Borrowers.
7. Miscellaneous.
7.1 No Other Amendments; No Waiver. Except for the amendments
expressly set forth in this Second Amendment, nothing contained herein
shall be construed to modify, amend or otherwise alter any of the terms
or provisions of any of the Loan Documents; nothing contained herein
shall constitute a waiver of or bar to any rights or remedies available
to any of the Agents or the Banks, or a waiver of any Event of Default
on any occasion, other than as expressly set forth herein; and nothing
contained herein shall constitute an agreement by any of the Agents or
the Banks or obligate any of the Agents or the Banks to take or refrain
from taking any action.
7.2 Execution; Counterparts. This Second Amendment may be
executed in any number of counterparts, each of which shall be deemed
to be an original as against any party whose signature appears hereon,
and all of which shall together constitute one and the same instrument.
This Second Amendment shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the
signatures of the Borrowers and the Required Banks.
7.3 Successors and Assigns. This Second Amendment shall be
binding upon and inure to the benefit of the parties hereto, and their
respective representatives, successors and assigns.
7.4 Joint and Several Liability. All of the obligations and
liabilities of the Borrowers under this Second Amendment and under all
of the other Loan Documents are joint and several.
7.5 Governing Law. This Second Amendment and all questions
relating to its validity, interpretation, performance and enforcement
shall be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts, notwithstanding any conflict-of-law
provisions to the contrary.
7.6 Offering Completion Date. The date on which Fine Host has
completed the initial issuance of the Subordinated Convertible Notes is
herein referred to as the "Offering Completion Date". Notwithstanding
any of the other provisions contained in this Second Amendment to the
contrary, this Second Amendment shall automatically terminate and be
null and void, and shall have no further force or effect, if the
Offering Completion Date does not occur on or prior to November 30,
1997.
IN WITNESS WHEREOF, this Second Amendment has been duly executed as an
instrument under seal by the duly authorized representative of each party
hereto, as of the day and year first above written.
BANKBOSTON, N.A. AS USTRUST AS
ADMINISTRATIVE AGENT DOCUMENTATION AGENT
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
BANKBOSTON, N.A. AS LENDER USTRUST AS LENDER
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
STATE STREET BANK AND TRUST THE SUMITOMO BANK, LIMITED
COMPANY
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
By:______________________________
Title:_____________________________
MELLON BANK, N.A. THE BANK OF NEW YORK
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
KEYBANK, N.A. FIRST UNION BANK OF CONNECTICUT
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
BANK OF SCOTLAND THE BANK OF NOVA SCOTIA
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
GLEACHER NATWEST BANK LEUMI TRUST COMPANY
OF NEW YORK
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
FINE HOST CORPORATION FINE HOST SERVICES CORPORATION
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
FINE HOST OF VERMONT, INC. FANFARE, INC.
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
GLOBAL FANFARE, INC. FINE HOST INTERNATIONAL
CORPORATION
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
CREATIVE FOOD MANAGEMENT NORTHWEST FOOD SERVICE, INC.
INC.
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
TARRANT COUNTY SUN WEST SERVICES, INC.
CONCESSIONS, L.L.C.
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
REPUBLIC MANAGEMENT CORP. VERSATILE HOLDING CORPORATION
OF MASSACHUSETTS
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
SERV-RITE CORPORATION IDEAL MANAGEMENT SERVICES, INC.
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
SERVICE DYNAMICS CORP. PCS HOLDING CORP. (f/k/a HCS
Management Corp.)
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
PCS MANAGEMENT CORP. HEARTSTRINGS GIFT SHOPS, INC.
(f/k/a N.C. PCSM, Inc.) (f/k/a Hospital Coffee Shoppes, Inc.)
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
THE ENVIRONMENTAL GROUP, CREATIVE DATA SYSTEMS, INC.
INC.
By:______________________________ By:______________________________
Title:_____________________________ Title:_____________________________
10
FINE HOST/R&N/A CUP ABOVE JOINT
VENTURE, a joint venture
By: Fine Host Corporation, in its capacity as a
joint venturer of aforesaid joint venture
By:______________________________
Title:_____________________________
FINE HOST/▇. ▇▇▇▇▇▇ &
ASSOCIATES JOINT VENTURE, a joint venture
By: Fine Host Corporation, in its capacity as a
joint venturer of aforesaid joint venture
By:______________________________
Title:_____________________________
WISCONSIN CENTER JOINT VENTURE,
a joint venture
By: Fine Host Corporation, in its capacity as a
joint venturer of aforesaid joint venture
By:______________________________
Title:_____________________________
